CHATTELS AND FIXTURESINTRO: In order to determine whether a chattel has become a fixture, transforming from personal property to real property, the following must be satisfied:

Test 1: First is there a contract to provide for this item? YES: Prima facie a chattel and onus is on the fixture advocate party to prove otherwise. NO: Prima facie a fixture, onus is on the chattel advocate party to prove otherwise

Test 2: Define FixtureAn object which has once been a chattel but which has become in law, land because it has become affixed to the land, thereby making it real property. Australian Provincial Co v Coreneo (Seats in a cinema / multipurpose / ‘life’ outside the cinema)

Test 3: What is the degree of Annexation (Is item attached by its own weight? YES: Prima facie is an object which is attached to the land only by its own weight is not part of land unless circumstances are such as to show that it was intended to be part of the land, the onus of showing that it was so intended is on the person who has asserted that the object ceased to be a chattel. Holland v Hodgson NO: Pima facie an object which is fixed to the land even slightly is considered to be part of the land unless the circumstances are such as to show that it was intended to continue as a chattel, and the onus is on the person who is trying to show that the object has remained a chattel. Holland v Hodgson (looms fixture / textile factory)

Test 4: What is the purpose of annexation, (Is the item for the use or enjoyment of the land?) YES If intention for annexing the chattel to the real property is for the better use and enjoyment of the land, then there is a tendency to say it is likely to be a fixture. Belgrave Nominees v Barlin Scott Air-conditioning NO: If intention for annexing the chattel to the real property is for the better use and enjoyment of the chattel, then it is likely a chattel. Leigh v Taylor: Attorney of the Commonwealth v RT Co Pty Ltd (tapestries / slightly annexed) Case Examples FixturesHawkins v Farley (Dishwasher incorporated into kitchen, H: incorporated into the design of the kitchen and if you removed it there would be a huge gap, therefore it was considered a fixture because it was for the better use and enjoyment of the land) Belgrave Nominees v Barlin Scott Air-conditioning (air-condition units sitting on pads, they were connected with some water pipes, and attached by electricity. H- Fixture because use of air-conditioning units was for the better use and enjoyment of the land) Reid v Smith: Old house resting on its own weight, they were on stumps to avoid termites, H-fixture only not attached because of termite. Case Examples Chattels Leigh v Taylor: (tapestry attached special hooks, h-chattel better enjoyment of tapestry and not real property. Attorney of the Commonwealth v RT Co Pty Ltd (printing press situated in the basement, affixed to the concrete, H-chattel, because the purpose of the annexation was to hold the presses steady / function)-----------------------------------------------------------------------------------------------------------Factors to Consider:-Degree of Annexation (ease and cost of removal)-Duration of Annexation (temporary v permanent)-Necessity (trade, business, architectural purpose)

Test 5: Do any Exceptions Apply1. Vendor/Purchaser: (YES) All fixtures pass to the purchase unless otherwise provided in the contract. 2. Mortgagor/Mortgagee: (YES+contract) Mortgage over the land secures the loan against the real property and also the fixtures. Typical Contractual Provision: Standard clause in property sales in order to avoid the problem of determining whether something is a chattel or a fixture. 3. Landlord v Tenant: (NO) A tenant who attaches fixtures to the land is donating it to the landlord. Curtin v Meadlow Holdings: Held: Tenant should remove their chattels, but need to be very specific about what property will be transferred from tenant to landlord, but the equipment was not considered furnishings, fixtures or fittings. Landlord did not use proper language in contract. The cold room however is considered a tenant fixture and so he was allowed to keep the cold room according to the language in the lease

Exception: a) Trade fixtures: if you as the tenant can demonstrate that you've attached something to the land for the purposes of trade/commerce, ex a significant piece of machinery, in this case it is likely considered a trade fixture, Vasco Nominees Pty Ltd v Stefan Hair Fashions: (Held: Balcony has basic characteristics of tenant fixture: Affixed or placed

on premises at cost of tenant and for the purposes of tenants business. The separate crown leases suggest they are not intended to be a permanent improvement to the lease and therefore not intended to be part of rental property) Curtin v Meadlow Holdings: Held: Tenant should remove their chattels, but need to be very specific about what property will be transferred from tenant to landlord, but the equipment was not considered furnishings, fixtures or fittings. Landlord did not use proper language in contract. The cold room however is considered a tenant fixture and so he was allowed to keep the cold room according to the language in the leaseb) Ornamental or domestic fixtures: can also be removed. But the courts will interpret this narrowly and it should be something that can be removed without damage.

TCON: Therefore it appears that the better view is that the (item) is a fixture/chattel/, affixed/attached by its own weight to the real property for the better use and enjoyment of the land/better use and enjoyment of the chattel.

FINDERS/KEEPERSINTRO: The objective is to find the true owner of the item and return it to them. If however the item is abandoned, the courts will consider which party has a better claim but not the best claim relying on the concept of just tertii.

Prior Possessor v True OwnerIn a dispute between a finder and the true owner:

General Rule: As the true owner, they have a better claim than the finder as they are able to prove ownership through (apply) and can therefore prove the item was not abandoned (Re Jigrose)

Test 1: Is the true owner a party to the court proceeding? YES: True owner will win subject to proof of ownership and rebuttal of finders argument of abandonment NO: Next Test: Determining Abandonment

Test 2: Has the item been abandoned? YES: Item has been abandoned because the owner has by throwing, giving the item away, a physical and mental intention to relinquish their proprietary interest (Re Jigrose) NO: Item was not abandoned as there was no intention to relinquish and mere inaction is not abandonment (Moorehouse v Angus Robertson)

Test 3: Does the prior possessor retain possession? YES: The prior possessor satisfies both physical and mental intention to possess and exclude others (Button v Cooper or The Tubantia)NO: Finder has not satisfied either physical or mental element.

Test 4: Does the prior possessor have lack of dishonest intent?YES: There s little evidence to support dishonest claim and the prior possessor has taken reasonable steps to contact true owner. NO: Prior possessors dishonest intent in trespassing/stealing/selling straight away (Hannah v Peel) and not taking reasonable steps to contact the true owner (Armory v Delamirie) overrides their prima facie claim to the item and therefore the owner has the better claim.

Prior Possessor v Subsequent PossessorGeneral Rule: The finder will retain possession of the item against the subsequent possessor based on the concept of Jus Tertii as a subsequent possessor will not be successful against a prior possessor simply by arguing that the true owner has the better claim. (Asher v Whitlock/Armory v Delamirie)

Prior Possessor v EmployerGeneral Rule: People who find property as employees find them for their employer. Hannah v Peel (found brooch in home being leased, h-current owner of house not owner of brooch, never even in possession of house) or South Staffordshire v SharmanException: Where employment is not the effective cause of finding the item, but merely an incident cause of finding the item, then the employee is entitled to keep the item. Byrne v Hoare (found gold near exit of drive in, h-employment wasn’t the cause of finding, but merely provided the opportunity)

Prior Possessor v Owner of Land Attached Property: Property that is attached or embedded in land or building gives the occupier the better claim regardless of his awareness of the existence of the item. Elwes v Brigg Gas Co(boat found in backyard, occupier didn’t know but b/c embedded, occupier has prior poss). South Staffordshire v Sharman: Workmen to clean a pool dirty, found two gold rings. Employees tried to claim ownership. Workmen were employed by the occupier of the land. Held: The rings were deemed to be in

possession of the occupier of the land on the basis that they were embedded in the soil/mud. Unattached Property: Property that is not attached or embedded in land or building, gives the finder the better claim, unless occupier can prove he exercised a manifest control over the land as to indicate an intention to control the land. Parker v British Airways Board (found bracelet in lounge, h-no sufficient control over lounge). Bridges v Hawkesworth (money found in store, given to store owner, h-store didn’t have prior poss) or Ranger v Griffin (owner of property given possession of money tin) Tamworth Industries v Attorney General (found money during raid, charges dropped, h-insufficient manifest intention to control property, neighbour controlled very little of who went on property)

TCON: Therefore it appears that the better view is that (finder/occupier/employer/true/owner) has a better claim to the (item).

If there’s an adverse possession involved in a finders keepers question, note that person wasn’t registered owner of the lot yet just because he is an adverse possession, so do not think he is entitled to it, only entitled once application for AP is approved and he becomes registered

BAILMENTINTRO: In order to determine whether (bailor) has a possible cause of action against (Bailee), we need to determine whether a bailment exists between them. A bailment is delivery of goods of one person, the bailor, into possession of another, the bailee upon an express or implied promise that they will be redelivered to bailor or death with in a stipulated way. (Hobbs v Petersham)

Bailment Arrangement: During term of bailment, bailee has immediate possessory interest, and bailor has reversionary interest. Unless there is a time provision, bailor may make demand for return of property and bailee must comply. If there is a term and bailor makes demand or gains possession, bailor is subject to action in trespass, conversion or detinue.

Test 1: Is there a bailment: The three elements that need to be fulfilled in order to establish a bailment:Three Elements 81. Actual or constructive delivery of goods by Bailor to Bailee. 2. Voluntary or consensual assumption of possession of goods by the Bailee. 3. Bailee need to be knowingly in possession of the goods.

Test 2: What type of bailment: (Coggs v Bernard)It would be argued that the type of bailment is:Commercial Bailment: often sources in a contract, for reward and for a period of time. (Payment) (Hire, Pawn, Contract for work/labour) Gratuitous Bailment: can be based in contract, no reward, and uncertain terms of duration. (No Payment) (grat safe keeping, grat loan, grat work and labour)

Test 3: Is there a sub-bailment?A sub bailment occurs when the bailee transfers possession of the goods to a 3rd party with or without the bailors permission thereby creating a collateral bailment. This gives the (bailor) the right to sue the (sub-bailee). A sub-bailment will only be authorized where: 1. The Bailor consented to the sub-bailment? Bailee needs consent from the Bailor for sub-bailment which may be express or implied by circumstances. (express asking, implied dry cleaning who gives to another for special cleaning). If no consent then Bailee has strict liability for loss. So will be liable for all breaches by sub-bailee. Bailee also loses right to possession and bailment is terminated. The bailor may sue the bailee. 2. The sub-baillee was aware of the bailment On voluntarily taking possession of the goods by the sub-bailee knowing of the existence of the head Bailor creates a legal relationship between head Bailor and sub-bailee without necessity for contract. Unauthorized Bailment Result: If no consent then Bailee has strict liability for loss. So will be liable for all breaches by sub-bailee. Bailee also loses right to possession and bailment is terminated. The bailor may sue the bailee.

Test 3: Is there breach of Bailment

Bailor Duties:1.Right to bail goods. 2. Not to interfere with bailee’s possession during bailment. 3. Duty to ensure goods are fit for purpose and safe for use 4. Warn of any hazards or defects. 5. Reimburse for damage or injuries.

Bailee’s Duties (prescribed in contract):(Bailee) has breached his duties under the bailment if he did not:

1. Use reasonable care in relation to goods. Uniform standard for all types of bailment, based on the reasonable care test, determining what is reasonable, sufficient or adequate in the circumstances. They may accept reasonable wear and tear, but anything beyond that the Bailee will be held liable. Pitt Son and Badgery Ltd v Proulefco

2. Duty to return goods: Bailee has obligation to returns good at expiry of bailment. Jackson v Cochrane. Non Delivery of Goods

3. Duty to retain possession-Bailee has obligation to retain possession of goods for duration of the bailment. Jackson v Cochrane. Misdelivery, Unauthorized Delivery

Test 4: Is there an exclusion There may be an exclusion clause in favour of the Bailee which limits his liability in regards to the bailment. The Pioneer Container.

Test 5: Remedies for the BailorWhere the bailee has breached the bailment by Not using reasonable care, the bailee has breached the contractual bailment terms therefore providing the bailor the ability to sue in breach of contract. Failing to return the goods, the baillee has breached the contractual bailment terms therefore providing the bailor the ability to sue in breach of contract and raise a cause of action in Trespass to goods, Conversion, Detinue. (then explain each of them) Failing to retain possession, the bailee has breached the contractual bailment terms therefore providing the bailor a cause of action in Tresspass to Goods.

Trespass to Goods: Wrongful intentional direct interference with chattel in actual possession of another. (baillee not return goods, bailor demanding goods before comm bailment is up) Conversion: Involves an act intentional done inconsistent with the owners rights to those goods. Must demonstrate that something has been done contrary to the plaintiffs entitlement to possession. (bailee had immediate possession and does something to goods that he shoudlnt, ie sell them, gives them to someone else, etc) Hollin v Fowler/Penfolds Wines v Elliot) Detinue: Tortuous or wrongful detention of goods and a refusal to hand them over to a person with a right to immediate possession who has formally demanded their return. (bailor requesting his chattels back. (car rental loses money when guy doesn’t bring back car, bailee doesn’t return goods)

TCON: Based on the facts, the better view is that the bailee breached the contractual bailment terms, therefore providing the bailor with a possible cause of action in (cause)

LAND POSSESSION DISPUTEINTRO: In order to determine whether (prior possessor) has a better claim to the land than (subsequent possessor) a number of issues need to be resolved.

Test 1: Establish Abandonment

Test 2: Establish elements of possession.

Test 3: Establish better ClaimGeneral Rule: An action for the recovery of possession of land need not prove a better right to possession than that of any other person. The plaintiff need only prove a better right to possession than that of the defendant. Ocean Estates v PinderJust Terti: If you are a person in possession and subject to an action by a prior possessor you should not be successful by simply arguing that the third party who is the actual owner is the rightful owner has the better title. Asher v Whitlock

Test 4: True owner claimWhere the true owner may reclaim the land subject to: LAA 1974-s13 Actions to Recover Land, s14 Accrual of right of action in cases of present interest in land, and s29 Extension.

IMMEDIATE VS DEFFERRED INDEFEAIBILITY INTRO: In order to determine whether (names) are capable of reclaiming (property), it needs to be determined whether the current registered owner is indefeasible under s37. If last person in the deal has registered, then A loses interest and applies for compensation If last person in deal is not registered, A will engage in equity priority dispute with last person to get Legal title.

Test 1: Applying immediate or Deferred Indefeasibility

Immediate Indefeasibility: Indefeasibility is conferred immediately upon registration irrespective of validity of instruments or transaction (S37 and Breskvar v Wall). The RP will hold their interest subject to registered interests but free from all other interest under S184(1)(a). The RP will not be affected by actual or constructive knowledge of an unregistered interest affecting the lot (s182(2)(a)/Freedman v Barrett).

Deferred Indefeasibility: Registration does not confer indefeasibility on a bona fide person if the registered instrument is void because of forgery using a fictitious name. Indefeasibility is deferred or postponed until the next valid transaction. (Gibbs v Messer) (Can be dead/fictitious)If an exception to indefeasibility applies, go to the exception, if not then continue to conclusion.

TCON: Based on the facts (new owner) has gained indefeasibility under s184(1)(a) and in this situation no exceptions to indefeasibility apply. (Prev registered owner) has lost their legal and equitable interest and may apply for a claim in compensation/ Based on the facts, (new owner) has not become registered and is therefore not indefeasible, in order to determine which party may register and obtain legal title (land), the following needs to be determinedgo to equitable interests dispute

EXCEPTIONS TO INDEFEASIBILITYINTRO: (Registered owner) is the registered owner of (property and therefore is indefeasible under s184(1)(a). However, (reg owner) does not obtain the benefit of indefeasibility under s184(1)(a), as (reg owner)’s indefeasibility is subject to the exception under (state sec and statue)

FRAUD 184(3)(b)State sectionTherefore indefeasibility is not maintained if the intention of the registered proprietor is to defeat an interest in land (184(3)(b).

Define Fraud: Fraud can be defined as dishonest of some sort (Assets Co v Mere Roihi) or if the designed object of a transfer be to cheat a [person] of a known existing right, that is fraudulent dishonesty of some sort (Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd). Fraud requires an element of moral turpitude (Latec Investments Ltd v Hotel Terrigal Pty Ltd) Mere notice of an unregistered interest does not constitute fraud under section 184(2)(a) (Freedman v Barrett).

Causal Link: To be relevant there must be a causal link between the fraudulent act and the obtaining of the registered title. Bank of SA v Ferguson-bank employee create false statement of assets, dishonest but only internal doc, no impact on grant mortgage, h-no fraud bc it must operate on the mind of the person said to have been defrauded or to have induced detrimental action by that person)

A) Mortgages-FRAUD AGAINST PREVIOUS RO/RPIn order to determine whether fraud poses an exception to the mortgaees indefeasible title, the mortgagee must have perpetrated fraud. (Go right into sentence)1) Knowledge of false doc = Fraud Fraud will be established against the registered proprietor if the registered proprietor at the time of lodging the instrument for registration knows that the instrument has not been properly executed in accordance with statutory formalities or knows the document to be false. AGC v De Jager-bank employee knew signature on mortgage not prop witnessed, h-Deemed fraud because you are presenting to the registrar a document that you know is not properly signed. But fraud will not be established when: Less than meticulous ≠FraudA less than meticulous practice as to the identification of persons purporting to deal with land registered under the provisions of the Torrens statute does not constitute a course of conduct so reckless as to constitute fraud. Grgic v ANZ-Imposter dad get mortgage over house.

Negligence ≠Fraud Fraud will not always be established if the forgery is due to wilful blindness, reckless indifference or shutting of the eye for fear of the truth on behalf of the mortgagee Young v Hoger-fraud mortgages, abstained from making inquires into eh truth, h-this was careless and negligent but did not act dishonestly, didn’t have suspicion. Royalene v Registrar Titles-failure to identify mortgagor with drivers license, h-shortcomings in conduct in relation to identification doesn’t mean the conduct was infected by actual dishonesty or moral turpitude.

Reasonable Steps IdentificationIn order for a mortgagee to obtain the benefit of indefeasibility under s184, they must establish that reasonable steps were taken to identify the mortgagor, in doing so the mortgagee must comply with s11A(2) (S185)(1A).

State s11A(2)(3) and Manual s9A(2)(c)

Where the reasonable steps were not fulfileld by the mortgagee, they will not be granted indefeasibility under s184(1)(a).

PERSONAL COVENANTThe loan may also apply personally against the innocent mortgagor or it may just provide the mortgagee with the ability to exercise its power of sale on default?Traditional Mortgages-contains an express statement that a principal sum was lent to mortgagor. All Moneys Mortgages-there’s a loan arrangement which involves a mortgage and a separate loan agreement. YES PERSONAL EQUITY: Hilton v Gray (forged mortgage under traditional mortgage) NO PERSONAL EQUITY: Grigc v ANZ and Duncan v McDonald-A registered forged mortgage for a traditional mortgage secures only to extent necessary to protect charge but personal covenant not enforceable, therefore debt not recovered beyond exercise of power of sale of land. (BETTER VIEW)

ALL MONEYS MORTGAGE- In a forged registered all moneys mortgage it may be indefeasible but the mortgage secures nothing as the separate agreement has not been signed by the mortgagor. (Chandra v Perpetual Trustees-mortgage quoted ‘Secured Money’ as moneys under a loan agreement called secured agreement and mortgagor had obligations under the mortgage. Mortgage did not secure anything as there was no secured money or secured agreement)

B) Unregistered InterestFraud can also be committed against an unregistered interest holder. In equity, a transferees notice of an unregistered interest, coupled with an attempt by the transferee to rely on the provisions of a statute to defeat that interest, constitutes fraud and is referred to as equitable fraud. Loke Yew v Port Swettenham Rubber-58 acres of land left out of contract even tho Glass said: I will make arrangements, this induced contract, h-statement was false and fraudulently made for the purpose of inducing the vendor into selling the whole 322 acres. But for his fraudulent statement, the transfer would not have been completed, therefore fraud

C) Supervening Fraud No final decision on whether fraud can occur after the registration of an instrument. Bahr v Nicholay-lease had repurchase agreement to Bahrs, lease not registered, new owner notified of lease and repurchase agreement. Refuse to sell back. H-Wilson and Toohey JJ: No, fraud under Torrens statute is fraud committed in the act of acquiring a registered title. Mason and Dawson JJ: “ there is no difference between the false undertaking which induced the execution of the transfer in Loke Yew and an undertaking honestly given which induces the execution of a transfer and is subsequently repudiated for the purpose of defeating the prior interest. Brennan J: No need to decide the issue as the in personam action allows them to recover.

D) Fraud by An AgentTitle registered with fraud by agent of registered owner will be defeasible if done within agents actual or apparent authority to create a valid mortgage. Dollars and Sense Finance Ltd v Nathan-son given mortgage docs-deemed an agent for mortgagee to obtain signatures and this fraud impacted on the mortgagee indefeasibility as fraud was part of the task he was asked to undertake albeit done fraudulently. Normally if agent is an employee employer is bound by fraudulent act if it is an unauthorised mode of doing their job ie within scope of employment. If the agent was acting for their own benefit, then fraud is not imputable to the RP (Schultz v Corwill)

Remedies: IF FRAUD BY MORTGAGEE, THEN APPLY FOR:S187 (1) If fraud by RP or 185(1)(c)(d)(e)(f)(g). SC make orders it considers just.

S187(2) SC direct registrar to make change to cancel/correct registrar, (e)-do ANYTHING ELSE. IF NO FRAUD IS ESTABLISHED, THEN INSTRUMENT IS INDEFEASIBLE, AND DEPRIVED OWNER CAN APPLY FOR THIS:S188(1)(a) CompensationIF REASONBLE STEPS NOT TAKEN BY MORTGAGEE, THEN RP APPLY FORS187 (1) If fraud by RP or 185(1)(c)(d)(e)(f)(g). SC make orders it considers just. S187(2) SC direct registrar to make change to cancel/correct registrar, (e)-do ANYTHING ELSE. MORTGAGEE APPLIES FOR COMPENSATIONS188(1)(a)

TCON: Based on these facts, the better view is that (prev registered owner) has successfully proved that fraud occurred in the registration of (name who), this will entitle (prev reg owner) to apply under s187(1) or s187(2). Based on these facts the better view Is that (preg reg own) has lost their legal tile and may apply for compensation under s188(1)(a).

IN PERSONAM 185(1)(a) State sectionThe title of a purchaser who not only has notice of an unregistered interest but who purchased on term that he will be bound by the unregistered interest is subject to that interest. Equity will compel him to perform his obligations. Valbirn v Porprop-property with tenants, clause in contract sale was subject to acceptance of leases. Or Bahr v Nicholay. Need to Show:1. RP purchased on terms of someone’s rights or unregistered interest (Bahr v Nicholay)2. RP has acknowledged or undertaken to acknowledge someone’s rights or unregistered interest. (Minority of Tara Shire)

Exception: Knowing Receipt of Trust PropertyKnowing receipt of trust property can raise equitable liability. Equity will hold a third party liable who takes trust property with knowledge it is trust property. Tara Shire Council v Garner-land sold to Arcape even though they knew it was supposed to be held for council. Davies Minority said: All that is asserted is that the applicant acquired registered interest with knowledge of an asserted prior interest - this is insufficient to bring within exception to s185(1)(a). No acknowledgment or agreement by Arcape to recognize interest. To raise equity it must involve some dishonest act generally repudiation of acknowledgment or agreement. But in Farah Constructions v Say-Dee-partners knew property was held in trust, h- one should distinguish between Bahr v Nicholay type situations where the defendant was attempting to ignore an obligation to share or convey the land with or to the plaintiff. In none of those cases was the defendant a party who merely had notice of an earlier interest or notice of third party fraud. Where there is no dishonesty or fraud by the holder of the registered interest, knowing receipt of trust property cannot be set up to defeat indefeasibility.

Look for: Inducement into contract (Loke Yew). Express clauses in the contract (Valbirn v Powprop). Acknowledgment or agreement to recognize interest (Minority of Tara Shire) Remedies: Specific performance of contract. S187 does not apply. Provides for rights enforced in personam.

TCON: Based on these facts, (guy) has successfully proved an equity exception to (reg prop’s) indefeasible title under s184. (Reg owner) will not be allowed to avoid his obligations to (guy). (Reg owner) will be obligated to fulfil (what guy wants)

SHORT LEASES 185(1)(b)State section

Registration of a lease of any term, does not require the protection afforded under S185(1)(b). However unregistered short leases are protected under s185(1)(b) and therefore any regisetered owner with indefeasible title will be subject to a short lease.

Schedule 2 Dictionary Short lease means a lease—(a) for a term of 3 years or less; or (b) from year to year or a shorter period.

Also keep in mind a 1 year lease from Dec 15 2010 runs till Dec 14, 2011 Establish what term of the lease is being exercised.

Determine what kind of lease it is and what is protected

1. Unregistered 3 year lease-no options: Exception to Indefeasibility under s185(1)(b) 2. Unregistered 3 year lease plus options to renew: Three year lease is exception to indefeasibility under s185(1)(b), options to renew are not protected and therefore not an exception to indefeasibility under s185(2)(b) Option and initial term must complete within 3 years to be exception under S185(2)(b)1+1+1-YES, 1+2-YES, 1+2+2, first option YES, second option NOException for Options:If an option to extend an unregistered lease is exercised prior to registration of new owner, this is an exception to indefeasibility of new owner as a new short term lease under s185(1)(b). Re De Jersey-renewed his option for 3 years just before property sold, h-exception to indefeasibility. Must be 3 years or less though. 3. Registered lease of any term plus option to renew: A registered lease does not require the protection under s185(1)(b), as it is already an exception to indefeasibility by merit of registration. Registration of lease also extends to any options under the lease. Re Eastdoro Pty. Mercantile Credit Limited v Shell Co: The right of renewal is so intimately connected with the term granted to the lessee, which it qualifies and defines, that it should be regarded as part of the estate or interest which the lessee obtains under the lease, and on registration is entitled to the same priority as the term itself.” if lease for whatever reason isn’t on the register go to S15 to correct register

Remedies: If the lease is registered and the new owner tries to kick them out, are they entitled to compensation? S188A(3) NO If unregistered and no protection see if the in personam exception may help you (did knew owner say he will acknowledge?)*Only reason to register a 3 year lease is to get the options protected, because there is no need to register a 3 year lease as its protected under short lease exception*

TCON: Based on these facts, (leasee) will/will not be afforded protection under S185(1)(b) and may remain in his lease until (end date of lease).

OMMITED EASEMENTS 185(1)(c)

Element 1: Easement must fall within S185(3)(a): Easements on land held under deeds Registration Land185(3)(b): Easement was registered under Torrens and somehow it’s been left off due to a mistake.S185(3)(c): Easement was lodged but by some mistake was never registered.Number of Transfer Irrelevant: S185(4): This means that regardless of how many transfers have occurred on the land, if there is an easement on the land, this is an exception to the indefeasibility of title therefore you will be subject to it. James v Registrar General

Element 2: Compensation for Omitted EasementsNo entitlement to compensation s189(1)(j) or (k)

Element 3: Ability To Correct RegistrarRegistrar may be corrected even if it prejudice’s interest holder in omitted easements s15(3)(a)

TCON: The omitted/misdescribed easement over (reg Owner) property is/isn’t an exception to his/her indefeasible title. (Reg owner) will not qualty for compensation under s189(1)(j) or (k). (guy will apply to the regisrtar under s15 to correct the registrar)

ADVERSE POSSESSION 185(1)(d)In order to establish adverse possession by (ap), the following elements need to be fulfilled).

Test 1: Establishing Common Law Elements of Adverse PossessionA) Possession must be adverse, open, peaceful, not by force and without the true owners consent.. Mulcahy v Curramore Pty LtdB) Must show mental (intention) and physical (control) possession of land and EXCLUDE ALL OTHERS. J A Pye (Oxford) Ltd v Graham

Indicators of possession: Look at each stage of what they are doing and determine whether it is sufficient to establish AP. THEN If AP is established at this date, then this happens (Either yes AP-make app, No AP, reclaim land). IF Successive occupiers, look at each stage determine whether AP, and then at end state they can be added together.

Paying rates - when real owner acquiesces in possessor paying rates - may be very strong evidence of adverse possession Quach v Marrickville Municipal Council.Cultivation/Repairs/Other Improvements (Includes farming, let animals roam, building stuff on their) (Buckinghamshire v Moran) Fences: Erecting fences to exclude others will indicate AP (intention of fencing important) Full fencing: (Buckinghamshire v Moran) Partial Fencing: George Wimpey v Sohn/ Riley v PentillaCharacter and value of the property: Using the land in the course of conduct that the proprietor would be expected to follow. Lord Advocate v Lord Lovat

Successive Occupiers: Successive occupiers without abandonment (and without consent from the registered owner or acknowledgement of the title of the registered owner) one can add separate continuance periods of occupation to constitute limitation period. Importance is that there is no abandonment between the adverse occupiers.

Abandonment by AP: Temporarily relocating for a few years and then coming back occasionally does not equal abandonment. Abbatnagelo v Whttlesea City Council-Abandonment is complete relinquishment of intention and physical possession.

Test 2. Satisfying LAA Provisions S13 Action to Recover by true owner is 12 years. S14 Action to recover land deemed to accrue at dispossession. S19 AP begins at date when person takes possession, not when property is abandoned by true owner. S29(1) Extension for Disability or Under Age is 6 years after end of disability or 18 years of age for minors. in Case of Disability S29(2)(b) Extension up to 30 years is only granted IF true owner is unknown at time AP makes application. Disability is defined as an infant or anyone of unsound mind (S5(2)Unsound mind extends to anyone who is in a mental health institution and anyone who has been locked up under special verdict s647 (S5(3)Re Johnson: guy camped on land occasionally, paid rates, fenced partially. H-no AP as elements of possession not made out. Possession was equivocal and no intention. Statement in newspaper no weight unless communicated to true owner.Statutory Limitations: s98- No AP for government land.

Test 3: Applying for APStep 1: Applying for Adverse Possession: s99, Refusal of application: s102. Step 2: Notice to anyone interest in Application (any true owners, neighbors or prior AP’s, s103. Step 3: Interested party lodging Caveat s104, Lapsing of Caveat s105, lodging further caveat s106, Refusal or acceptation of caveat s107. Step 4: Registration of AP s108

TCON: Based on the facts (AP) has established adverse posession and will most liekly become the new registered owner, pending application. The (reg owner) has lost their legal and equtiable title to (property).Prior Certificate of Title s185(1)(e)A mistake in the registrar to note a prior certificate of tile does not confer indefeasibility under section 184(1) to the new registered proprietor. Registrar of Titles and Esperance Land (CT issued by registrar included land that was under CT to someone else, no fraud. Tried to claim indefeasibility to entire land, h-not indefeasible)Failure to Cancel s185(1)(f)A mistake in the registrar to cancel a prior indefeasible title on registration does not confer indefeasibility to prior registered proprietor. Subsequent interests will prevail. Failure to Cancel s185(1)(f)Where land is wrongly included in indefeasible title, the true owner rather than the registered owner retains title to that land. Overland v Lenehan It is clear, therefore, that if it is made out that the description of the land or of the boundaries of the land as set out in a certificate of title is erroneous, the erroneous description is not conclusive. May be corrected under s186. New Provisions s185(1)(h)(i)Registered owner is subject to Petroleum and Gas Safety Act and Greenhouse Gas Storage Act.

REMEDIES

INTRO: A successful claim in (exception) will afford (claimant) the ability to apply to the Supreme Court under s187 to (name what you want done) or they may apply to the Registrar under s15 for correction of the registrar.

METHOD 1: SUPREME COURTAvail for: Fraud, omitted easements, adverse poss, prior certificates, wrong inclusion S187 Order by Supreme Court(1) Supreme Court may make any order they consider just(2) Order the registrar to (a) cancel or correct title (b) cancel, correct, register an instrument (c) create new indefea title (d) issue a new instrument (e) do anything else

METHOD 2: REGISTRAR CORRECTION Use this where for some reason an instrument has been left of the registrar (lease/easement S15 Registrar may Correct Registers1(a) Must be incorrect. 1(b) Must not prejudice. (3)(a) even if prejudice, for omitted or misdescribed easement. (8) No prejudice if constructive knowledge that registrar is incorrect. General Rule: Exercisese of Registrar's powers of correction conferred by s. 15 LTA is permitted where (1) a clear case of error, provided that the correction (2) does not prejudice the rights of the holder of an interest recorded in the register. Error in procedures does not suffice. Equitiloan Securities v Registrar Of Titles (Mortgage lodged for reg, reg delayed, regisrtar notified of poss fraud. Reg failed procedures to investigate, h-reg exceeded powers, mortgagee is prejudice)

Exception: Correction can be made despite prejudice to interest holder if the error involves the

a) Omitted easement exception contained in s.15(3)(a)b) Pursuant to Supreme Court order under s26. c) If the interest holder has knowledge register is incorrect and how it was incorrect

s15(8)

Registrar may also hold an inquiry-> S19 Registrar may decide to hold inquiry. S20 Registrars duties on inquiry. S21 Registrar may decide procedures. S22 Registrars Powers on Inquiry if inquiry says yes there is incorrectness, then registrar will use powers under s15 to correct.

COMPENSATION

INTRO: Where a previous registered owner has been deprived of their interest in land or suffered damage or loss because of the operation of the torrens system, (reg owner) may apply for compensation from the Registrar so long as the following elements of satisfied.

Test 1: Claimant must be deprived of a lot/interest in a lot or suffered loss or damage.

Element 1: Why was it deprived? Claimant must be deprived of her or his land or an interest in the land s188 or Suffer loss or damage S188A.

Element 2: What was deprivedA) (Reg owner) suffered a Deprivation of Equitable Interest (Williams v Papworth: land register under torrens, forgot to include a charge for trustee, h-beneficiaries entitled to comp for deprived equitable interest. B)(Reg owner) suffered a Partial Deprivation, where the land has been returned but subject to a registered mortgage (Heron v Broadbent: land subject to indefeasible registered mortgage)C) (Reg owner) suffered Complete Deprivation (Frazer v Walker)

Test 2: Deprivation must be caused by one of the matters listed in s188(1) or s188A. S1188(1) a) Fraud of another person b) Incorrect indefeasible title c) Incorrect registration d) Error in indefeasible title. e) Tampering with register, f) loss, destruction, improper use od document deposited or lodged S188A(1) (a) incorrect creation indefeasible title b) incorrect registration c) error in indefeasible title d) reliance on the incorrect state of freehold land register e) loss, destruction, improper use of document lodged

Test 3: The claimant must not be excluded from claiming compensation

a. Where the error can be corrected by the registrar S188A(3)b. No compensation for personal injury S188AAc. Anything listed in S189 a) breach of fiduciary duty ab) failure of mortgagee to

follow reasonable steps under 11A. b) person or agent substantially contributed to depr. f) error in boundaries. i. registrar lodging caveat. j. omitted easement. k. misdescribed easement.

S189(1)(b) Substantial Contribution Claimants: Neglect of the claimant must be more than contribution, it must be a large or big contribution to the fraud. Registrar of Titles v Fairless (contractor got guy to sign over papers, didn’t know what papers were, old, h-he got comp)

Agent: A person acting as an agent will only have substantially contributed to the deprivation if it is within the scope of their agency to commit such actions. Registrar of Titles v Fairless

Depends on occupation and it only ever really is within their occupation if their job is to deal with the registration of homes etc or if the claimant asked the person to register their home, only in such specific circumstances would it amount to “within the scope of their agency”.

When compensation should be calculated: 2 WaysThe measure of compensation can be measured from two different dates:Date of Deprivation (date new owner gets registered) Spencer v Registrar of TitlesDate of Trial/Judgment (to restore claimant to pre-deprivation position) Registrar of Titles v Behn

The better view is that the (pre reg owner) is entitled to the amount which will restore the claimant to the pre-deprivation position which is supported by the date of trial judgment, and therefore the (prev reg owner) will be entitled to the current market value which is (amount)

Time Limit for Claim S188C a) 12 years after aware of entitlement to compensation or b) within longer persiod court finds necessary. The claimant will/not be entitled to compensation as (reg owner) is within the allotted time limit to make a claim S188C

Measure of Comp (Only relevant for land that is subject to a reg mortgage) The damages recoverable when land is fraudulently subjected to a mortgage is ordinarily the lesser of the amount secured by the mortgage and the value of the land. However, the higher amount may be recovered where that is reasonable between the parties. Kendel v Regarose

a) Mortgage amountb) If mortgage more than land value, then take land value and maybe more

Limit on Amounts Recoverable by MortgageeA mortgagee may be limited in the amount they may recover under s189A.-> S189 A Limits on Amounts recoverable by Mortgagee

TCON: Where (Reg prev owner) has fulfilled the requirements in order to make a claim of compensation, they should make a claim under s188 or s188A to registrar. IF the registrar refuses to aid, (reg owner) may apply to SC under s188B, to (1)(a) Compensation to be paid by state or b) direct registrar to take actions to

CAVEATSTCON: in order to protect an interest in land, an interest holder may lodge a caveat into the registrar. A caveat is an entry made in the books of the offices of a registry or court to prevent a certain step being taken without previous notice to the person entering the caveat. In order to lodge a caveat, the following elements must be satisfied.

Test 1: Identify interest or transaction being prevented from registrations124(1) Prevention of registration of another instrument over the lotDoesn’t Prevent Reg: 124(2) (a) instrument caveat doesn’t apply (b) consent of caveator (c) mortgagee has power to execute(d) transfer of mortgage, by a prev register mortgage prior to caveat(e) interest not affect caveator. Registrar provided notice to anyone effected by mortgage. s123 LTA:

Test 2: Identify Caveator/caveateeCaveatee: for a lot over which a caveat has been lodged means (a) registered proprietor of the lot or (b) someone who has an interest (SCh2)Caveator: for a lot over which a caveat has been lodged, means a person in whose favor the caveat is lodged (SCh2)

Test 3: Who has an interest? If not should caveat be withdrawn?A caveat may be lodged by any of the following:a) a person claiming an interest in a lotAIA s36 Interest: (a) a legal or equitable estate in land or other property (Narrow Interpretation) (b) a right, power or privilege over, or in relation to the land or other property (broad interpretation)

General Rule: Normally a personal right is not sufficient, you must establish some right which affects the land itself. Re P. T Earthmoving Pty Ltd ‘s Caveat (contract to move dirt, granted possession of land. Lodged a caveat bc not being paid. H-No, mere personal interest enforceable in personam but not in rem. Did not satisfy concept of interest under Acts Interpretation Act.

Exception: Personal interest such as a license does fall within the definition of interest under section (b). Medical Service Pty Ltd v Chief Executive Dept of Main Roads (took car park, person who owned car parking license wanted compensation. H-A car park license came within para b. this suggest a broad interpretation of interests)

Contract include a caveatable interest :Parties cannot create caveatable interest by agreement that caveat can be lodged unless interest in land created. An interest in the land can be created by including in a contract that any money owning in the contract will become a charge against the land. Depsun Pty Ltd v Tahore Holdings Pty Ltd (tried to create a caveatable interest in the contract).

Contract for Sale/Purchase LandGeneral Rule: A contract to purchase land, creates an equitable title which supports a caveat. By signing the contract an equitable interest is created.

Exception: Conditional Contracts An equitable interest in land by construct for sale and purchase of land is only created when purchaser is entitled to specific performance, ie when the condition is filled Re Bosca Land Pty Ltd ‘s Caveat BUT NOW: The estate or interest claimed by the purchasers under the contracts was sufficient to ground a caveatable equitable interest in the relevant land notwithstanding the conditional nature of the contracts Kuper v Keywest Constructions Pty Ltd Equitable Mortgages s122(2) However a caveat may only be lodged by an equitable mortgagee if it is a caveat to which s126 applies.Caveats lapse after 3 months. So all caveats lodged for equitable mortgages must lapse. S126 Lapsing of Caveat

Test 4: How long does the caveat last1. Withdrawal of caveat s125 at request of caveator and under s129-cant lodge same caveat unles approval of court. 2. Lapse of caveat s126 (2) cavaetee may serve caveator notice to commence proceeding. (3) if he does (2) must notify registrtar 14 days of notice. (4) caveator must start proceedings (i) if notice, within 14 days, (ii) no notice, 3 months. (5) no comply with 4, caveat lapse. Exceptions to s126(1)S126(1)(e) Installment Contracts qualify for non lapsing caveats. (a contract to purchase land where you make a payment over the 10% depsoit and do not receive a conveyance in return.

Test 5: Can caveatee apply for Removal?If the caveatee has successfully won the priority dispute against the other equitable interest, they may apply to get the caveat removed: S128(1) removal by registrar, if that doesn’t happen S127 Apply to SC to remove:

Caveat will be removed if caveator fails to:

a) Caveatable interest (refer to Test 3)b) Prove a serious matter is to be tried (link to exceptions to indefeasibility

(short lease, omitted easement, etc) this will be considered a serious matter. c) Balance of convenience: courts will look at potential harm to caveatee if

caveat remains and harm to caveator is caveat is removed Ridge v Incentive Programmes Pty Ltd

Compensation: S130 Compensation for Improper Caveat If the cavatee has successfully won the priorirty dispute against the other equitable interest, they may apply for compensation: (1) caveat w/o reasonable cause must compensate for loss. (2) exemplary damages may be awarded by court (3) presumption that caveat lodged without reasoanble cause unless caveator prove otherwise.

Test 1: Absence of honest belief on part of ceavtor on reasonable grounds that caveatable interest existed. Reasonable Cause: Foundation of a reasonable cause is not actual existence of caveatable interest but honest belief based on reasonable grounds that the caveator had such an interest. Bedford Properties Pty Ltd v Surgo Pty Ltd

Test 2: The caveat was lodged and maintained for an improper purpose eg to apply pressure and in doing so caused loss/damage.

Very important to look at the intention and purpose as to why the caveat was lodged in first place Where a caveat has been lodged and maintained for an improper purpose, the caveatee may claim compensation. In Farvet v Frost, it was concludes that the heading of S130(1) using the word improper could be used to define a caveat as being improper where it is used to apply pressure or causes damage or loss to an equitable interest holder. Farvet Pty v Frost

SETTLEMENT NOTICESINTRO: Where an equitable interest holder such as a purchaser of land or a mortgagee can’t financially lodge a caveat, a settlement notice may be lodged as it is less expensive and more timely efficient. S151-can still lodge caveat if SN lodged, S138-person lodging SN is purchaser or mortgagee, S139-less onerous requirements then caveats, S141-SN prevent registration unless lapses, withdrawn (S142) or cancelled. S143 all SNs lapse (2m) S146-further SN require court approval S147 Similar liability for improper lodge

PRIORITY DISPUTES BETWEEN EQUITABLE INTERESTSTCON: In order to determine which equitable interest will gain priority and be allowed to register their interest thereby receiving legal title to the property, a number of elements need to be established.

Element 1: Caveats protect don’t, create. It is important first to note that a holder of equitable interest cannot improve interest by lodging caveat - priority based upon general law not by order of lodgment of caveats. Waltons Finance Ltd v Crest Realty Pty Ltd:

Prima facie first created equitable interest is entitled to priority. Rule may be displaced where it makes it inequitable to apply the general rule. (Abigail v Lapin)

Holder of the prior equitable interest (Lapin) had created the situation which allowed the fraudulent party to go out into the world under false colors (Abigail v Lapin)

Element 2: Establish order of Equitable Interest HolderThe first equitable interest was created on (name date), because (date lodged/date paid money/completion of contract) therefore this would make (equitable interest holder) the prior equitable interest holder. The second equitable interest was created on (date), because (date lodged/date paid/completion of contract) thereby creating a second equitable interest on the proeprty for (equitabe interest holder) making him the subsequent interst holder. -> Refer to date of lodgment of interest. S178

Element 3: Look at Conduct of Prior Interest HolderWhen there is more than one equitable interest holder just look at everyones conduct independently then come to a conclusion.Wifes who have paid entire house price but are not registered have a equitable interest in the form of a construstive trust (. (Platzer v Commonwealth Bank of A)Lodge Caveats/SN-Omitting to lodge a timely caveat before creation of subsequent equitable interest holder may result in postponement of priority of the prior equitable interest holder (Butler v Fairclough, Good owns land, owners Butler money agrees to charge against land. Good sells to Fair, who searched registrar, no charge listed, buys property. But lodges caveat, h-omit to lodge caveat, loss priority. Important: Span of time was 2 days-so doesn’t matter how little time. Abigal v Lapin and Breskvar v Wall-Failure to lodge timely caveat

Exception to Failure to Lodge CT: a) Failure to lodge caveat where CT is held by Prior Equitable Interest holder. (J and H Holdings v Bank of NSW)

b) Failure to lodge caveat where strong family and trust ties between Prior Equitable Interest holder and vendor. (Jacobs v Platt Nominees Pty Ltd-daughter option to buy hotel, dad who doesn’t like daughter sells to someone else, daughter advised to caveat but doesn’t because trust mom, h-She didn’t’t get CT, she didn’t lodge timely caveat. where daughter reasonably believe that lodging a caveat wasn’t necessary because of the trust with the mother) Hold CT: Where the prior equity holder is in possession of CT this will aid in keeping his priority. J and H Holdings v Bank NSW-had mortgage with bank, bank held CT. Went to someone else for loan, lied about not having CT. They lodge caveat and stop BNSW from reg h-they had CT, therefore not need caveat. Abigail v Lapin and Breskvar v Wall-failed to retain CT

Element 4: Look at conduct of Subsequent Equitable Interest Holder

Searching Registrar: Where the subsequent equity holder searches the registrar this may entitle them to priority. Osmanowski v Rose - Classic Vendor Sold Twice Case-vendor sells to Osman and then to rose. Osman don’t lodge timely caveat. Rose searched registrar, no ref to prior interest or caveat, h-search of registrar and paying money and fail to caveat disentitles prior holder. Paying Purchase Monies/Balance-Payment of monies owing or payment of settlement and receiving of transfer forms may entitle the subsequent equity holder to priority. (Clark v Raymor-Vendor has charge against land, then sells to Clark, who does search which shows no charge b/c charge holder doesn’t caveat) paid money and sought registration, h-he wins. Exception: Holder of prior equitable interest will not be postponed if later equitable interest holder knew of prior equity (this will include constructive knowledge. (Platzer v Commonwealth Bank of A-hus gets mortgage for house that wife paid for in full, so she had constructive trust over land. H-caveat by wife is late but bank lost priority bc if they had done search they would have known wife had constructive trust, so deemed to have constructive notice. Element 5: ResultNew title holder can: 1) Apply to have caveat removed (refer to Test 5 under caveats)

2) May apply for compensation (S130

Concepts of PropertyJustification for Private Property: The Occupation Theory: A person who is original discoverer and occupier is entitled to dispose of it. The Labor Theory: Product of labor gives entitlement to property right and society should encourage that. This arose out of the English revolution. Idealist Personality Theory: A person’s ability to act as a free personality requires the ability to have dominion over property. The Economic Theory: Idea is if you didn’t give someone an economic incentive to do certain things, then they wouldn’t and everyone would be worse off. Characteristics of Property National Provincial Bank v Ainsworth: 1. Definability: able to define property, has physical presence2. Identifiability: (by 3rd parties)3.Assignability: normally assignable to 3rd parties4. Durability: Some degree of stability/durability. Categories of Property

1. Real Property: (Land, houses) A. Corporeal Hereditaments-actual physical things over which ownership could be exercised. Books, crops, trees etc). Corporeal- Moveable (Goods) and Immoveable (Land) B. Incorporeal Hereditaments-intangible. Non physical rights affecting the land, ie easements, profits a prendre. .Incorporeal-Moveable (Ownership of Goods) and Immovable (Ownership of Land)2. Personal Property (Personalty): A. Chattels Real: Leaseholds. Developed later were not considered real property but personal contracts. B. Choses or things in possession (Chattel personal) Synonymous with goods and chattels. Ex Book, pen car, clothes. Fishers Three Characteristics of Choses in Possession: a) Tangibility: the thing in question has substance or a physical presence. b) Capable of Physical Acquisition: the material object is capable of being reduced into possession c) Movable: not unique to corporeal Hereditaments C. Chooses or things in action (Chattel personal) All personal things which are not choses in possession. Loxton v Moir: A right enforceable by action. A right to sue for a sum of money is a chose in action and is a proprietary right. Fishers Three Characteristics of Choses in Action: a. Enforceability: By the right holder against the duty holder b. Incorporeal and Intangible: An immaterial legal object c. Bare Right: Without any occupation or enjoyment. Ex. Entitlement to recover debt, shares, patents. Numerous Clausus Principle/Closed List Rule: landowner are not at liberty to customise land rights – they must fit into established pigeonholes and the law permits only a small and finite number to be considered as an in rem property right.

Doctrine of Tenure (Fragmentation of Property Rights)PLA S20 Incidents of tenure on grant in Fee Simple(1) All tenures created by the Crown upon any grant of an estate in fee simple made after the commencement of this Act shall be taken to be in free and common scoage without any incident of tenure for the benefit of the crown. Of the Crown: The way the doctrine of tenure is still relevant today is that all land in Australia is freehold interests (therefore no fee system in place) but the land is held “of the crown’ (implying it is still owned by the crown), but is free of incidents of tenure (so no need for any obligations or services to crown).

Doctrine of Estates (Fragmentation of Property Rights on the basis of time)An estate in land is a collection of rights that can be exercised over and in respect of land for a particular time. 1. Estates in Freehold (duration is uncertain). A) Fee simple: Fee means inheritable which means it can be left to anybody under a will. Its the largest estate known to English law. Determinable Fee Simple: A fee simple granted and will end automatically on the occurrence of a specified event that may or may not occur Eg: Grantor: To X in fee simple for so long as the land is used for the purposes of a university Defeasible or Conditional Fee Simple Fee simple defeasible by condition subsequent ie fee simple granted in absolute terms but qualified by a super-added condition of defeasance. Eg To A in fee simple but if the land ceases to be used as a university it shall return to the grantor. B) Fee Tail (Abolished) Continued so long as the original tenant or any of his or her lineal descendants survived ie children; grandchildren or great grandchildren. C) Life Estate Lasts for life only. Eg. to X for life.Estate pur autre vie: A life estate granted to one person where the estate is measured by the life of another Eg. To X for the life of Y2. Estates less than freehold (duration is determined)An estate less than freehold. Usually called a leasehold. Successive Enjoyment of Land: Allowing different people to own different interests in property. 1. Estates in Expectancy Estates that allow you to have possession of land at a future time. But it is still a present right, just not present possession. A) Reversion: Grantor grants a lesser estate. At the termination of the estate, the land reverts back to grantor. Ex. Grantor grants Blackacre to A for Life. A-

Life estate in possession. G-Fee simple reversion. B) Remainders: When the owner of the fee simple grants a particular estate to one person and then in the same instrument grants another estate in the same land which will take effect on the termination of the prior estate. Vested Remainders: Where the owner is given a present and unqualified right to possession of the land as soon as the prior estate comes to an end. Pre conditions for Vested Remainders: 1. The person or persons who are to take the estate must be ascertained. 2. There is no condition precedent attached to the estate other than the termination of all preceding estates. Contingent Remainders: A remainder is contingent if either of the two conditions for vesting are not met at the time of the grant. G transfers to A for life, fee simple remainder to A’s eldest son living at A’s death. A’s son has contingent fee simple remainder. Contingent as until A does, it is impossible to say who A’s eldest son living at his death will be. (As death is irrelevant, its the uncertainty of who the eldest son is) 2. Estates in Possession Gives holder an immediate right to possession and enjoyment of land. Person with a current right to possession has the estate in possession. Equity and Equitable Estates in Land Law: Trustee: Held legal estate / title. Beneficiaries: Equitable estate.

Torrens TitleSeisin: If you are a free holder you are said to hold seisin in regard to that parcel of land. Leasehold has possession but not seisin. Title to Land: any title to possession, not necessarily the best Good title: best title to land, allowing resistance of any claim for possession of the land. Good title is saying you have the best title to land. Deeds Registration: Priority given to first registered. Notice subject to S246 PLA requires bona fide. Notice of prior registration does not equal bona fide. Nemo Dat: If prior fraudulent transaction, your tile is void. Torrens Title: A system of title by registration. (Barwick CJ in Breskvar v Wall) Mirror: the register is complete and accurate reflection of indefeasible title, not bound by unregistered interests. Curtain: one need not look beyond the register to prove the registered proprietors title-the register is conclusive evidence of title. Insurance: compensation by state govt for losses resulting from operation of Torrens Title.

Differences between Old System and New SystemOld System/Deeds Registration Torrens System

Title conferred by parties signing documents Title conferred by registration

Registration merely conferred priority Registration confers prima facie indefeasible title

Documents as proof Register as proof

Validity of title depended on validity of documents

Validity of title conferred by registration

Notice = equitable fraud Mere notice isn’t Torrens fraud

Remediless? Compensation?

Mortgage took effect as conveyance Mortgage is merely a statutory charge

LTACT issued under s42. Registration of instrument: s173 Instrument lodged: s177 Priority of Instruments when lodged, not executed: s178. Requisitions s156 Exceptions to lodgment order: S177, S159, S157. Volunteers benefit too s180 Legal title given once registered s181 Registration confers constructive notice to other re instrument s182. Bursill Enterprises v Berger Bros, (easement over land was in registry, guy failed to read it. H-if he has made such searches as ought reasonably to have been made by him, as a result of what there appears.)LEGAL TITLE: Once registered under LTA and enforceable against 3rd partiesEQUITABLE TITLE: Not registered under LTA, but still enforceable against contracting parties.

GRAND THEMES1) Possession is nine parts of the law. (Personal Property torts, rights over personal property, elements of possession, finders/keepers) Real property-who has best right to property, seisin)

2) You actually don’t own anything you own rights in things (you own something separate in land)

3) Many people can own different aspects of property at the same time (Frag of prop-personal prop-bailment, real prop-fee simple, life estates, leaseholds, mortgages, create easements)

4) The extent of your property interest is measured by how many sticks you have in the bundle of sticks that is property (fee tails, fee simples, life estates, estates less than freehold, ownership and fee simple is greatest number of sticks.

5) The dividing line between chattels and land is fixtures. (personal property can become party of real property, Chattel becomes land)

6) You are safe when you get registered except when you are not (immediate indefeasibility, is important to register first, exceptions to indefeasibility)

7) It is a rush to the register. (important to get registered for priority disputes, doesn’t matter if other person caveats, because its too late).

8) If the registration system works against you, you will be compensated except when you don’t deserve it. (omitted easements, substantial contribution to deprivation, loss or damage, ability of registrar correct, having prior notice of equitable interest)

Upon registration, the registered owner/proprietor gains immediate indefeasibility (s37 LTA) Breskvar v Wall) free from all unregistered interests. S184(1)